Re: Copyright and heresy

I'm very surprised to hear you say that our fair use doctrine originated with the British "fair dealing" doctrine. I'd like to hear more about why you say that.

Most histories of fair use-- corroborated inter alia by my own researches on the subject -- seem to locate its origins in American cases like Folsom v Marsh, which were decided back when it wasn't an infringement of copyright to make (most) derivative works. That is, under early U.S. law, the copying work did not infringe so long as it was a creative adaptation (including abridgements!), addressed to a different market, and not a mere "facile use of the scissors"

In the earliest days (1790) our statute gave copyright owners only the exclusive rights to "print, reprint, and vend". Only gradually did the proprietor gain control over abridgements, translations, performances, and other CREATIVE uses of the work. So as I see it, fair use came out of the limitations of federal copyright's early exclusive rights, as a natural outgrowth of the early statute's structure-- it was a need to decide WHAT COUNTED as an infringement, an issue hardly closed shut today.

Could you tell us more about how you see the indebtedness arising? Did the early US cases cite the "fair dealing" cases?

Frankly, I can't imagine any intellectual property system without SOME notion of fair use-- just as I assume that any system of tort law that regulated city life would have to provide some liberty for nonconsensual touchings. Nevertheless, the issue of origins and transatlantic fertilization is interesting.

Wendy Gordon

Wendy J. Gordon                 |		
Professor of Law                |  Internet:  wgordon[_at_]bu.edu
Boston University Law School    |  Phone:     617-353-4420
765 Commonwealth Avenue         |  Fax:       617-353-3077
Boston, MA  02215               |
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On Wed, 8 Feb 1995, jamie wodetzki wrote:
>
> On Tue, 7 Feb 1995, James Cook wrote:
>
> > To what extent is this case, and this issue, of import and force in the
> > U.S.A.?
>
> The concept of fair dealing under English law (and in other common law
> jurisidictions) is the origin of the US law of fair use. The analysis of
> a fair dealing defence looks at much the same stuff as the fair use
> defence. The English case may not be binding on US Courts, but it is very
> much on point and should be of interest in terms of arguments made and how
> the Court dealth with the issues. It may be of persuasive value in the
> USA, but you'd have to tell me about that.
>
> | Jamie Wodetzki, Copyright Research Officer
> \ / Australian Council of Libraries and Information Services
> A C L I S PO Box E202 Queen Victoria Terrace Canberra ACT 2600
> / \ Tel +61 6 262 1273 Fax +61 6 273 4493
> / \ Email j.wodetzki[_at_]nla.gov.au
Received on Wed Feb 08 1995 - 21:30:03 GMT